Summary: Mr X complains the Council failed to properly respond to a planning enforcement report he made. There was fault by the Council. The Council should reconsider Mr X’s report and explain its decision properly. It should also make a payment to recognise the time and trouble Mr X was put to in bringing a complaint.

The complaint

1. Mr X complains the Council failed to properly respond to planning enforcement reports he made about his neighbour’s new fence. Their driveways are adjacent to one another. Mr X says his neighbour erected a new fence which impedes his visibility and access. He complains the Council failed to properly take account of the issue and failed to consider the limitations of permitted development rights.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I spoke to Mr X and considered the complaint he raised and information he provided. I asked the Council for information and considered the Council’s response to the complaint.
5. Mr X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

National Planning Policy Framework (NPPF)

6. Paragraph 58 of the NPPF states that effective enforcement is important to maintain public confidence in the planning system. However, enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.

Permitted Development Rights

7. ‘Permitted development’ rules exist nationally to allow certain building works and changes of use to be carried out without someone having to make a planning application. The works that can be done under permitted development rights are limited and subject to conditions to control their impact. If the works being carried out meet the criteria set out in permitted development legislation, they are deemed to have planning consent.

What happened

8. In April 2018 Mr X contacted the Council to report that his neighbour had erected a new fence which impeded his visibility and access to his driveway. Mr X and his neighbour have adjoined garages with driveways in front of them. The driveways are adjacent to one another. Mr X’s neighbour erected a 2m fence down the middle of the two driveways. His neighbour also erected a 2m gate across the front of his driveway.
9. The fencing made it more difficult for Mr X to manoeuvre into and out of his drive and garage. It also impacted his visibility of pedestrians and vehicles when doing so.
10. Mr X reported the issue of the fence to the Council’s planning department. He explained it would affect his access and his visibility. Mr X also mentioned restrictive covenants that applied to his housing estate.
11. The Council told Mr X that the covenant did not affect planning policy. It stated the fence was a civil issue between him and his neighbour rather than a planning matter and it could not help.
12. On 24 July 2020 Mr X contacted the Council again. He explained since he raised the issue previously he had been told his neighbour’s fence should not be higher than 1.2m to maintain visibility of the road. He asked the Council’s highways department to comment.
13. The highways team commented about the permitted development rights that exist in relation to fences. These state that, ordinarily, someone can erect a 2m fence at their property without applying for planning permission. However, permitted development rules restrict this to 1m where a fence adjoins a road or a footpath. They stated in Mr X’s case the fence adjoined the footway and encroached on visibility so it was clearly something for the planning team to look into. It would also be a legal matter between neighbours.
14. A planning enforcement officer responded to Mr X’s report. His response was brief. It stated only that that fencing could be erected within the curtilage of the dwelling up to 2m in height without the need for planning permission. The Council confirmed it did not register a second enforcement case.
15. On 3 August 2020 Mr X raised the issue with the Council again explaining the problem and stating he was unable to take legal action against the neighbour. He sent the Council the highway officer’s comments. The planning enforcement team stated it’s position from 2018 was unchanged. The Council stated it would not be able to take any action. It told Mr X if he wished he could make a complaint.
16. On 5 August, Mr X asked to raise a formal complaint about the way his report had been dealt with. He provided photographs and details of the problem the fence caused. He received no response and sent a chase up email. I understand this was sent on 1 September 2020.
17. On 9 October the Council responded at Stage Two of the complaints process. It set out the previous correspondence and Mr X’s concerns about the fence. In response to Mr X’s complaint it stated “the planning enforcement team concluded that whilst the wall in question may be higher than 2m in height, it is not considered to be harmful in planning terms so as to warrant further investigation. They also confirmed that the concerns you raised about the guttering are not covered by Bristol City Council.” The response stated this was revisited by the planning team in 2020 and they confirmed the position remained the same and they would be unable to assist. The Stage Two complaint response concluded the planning enforcement team’s response had been fair and reasonable and it found they had not been at fault.
18. Mr X remained unhappy with the way the Council dealt with the matter and brought a complaint to us.

Was there fault by the Council

19. I found there was fault in the way the Council responded to Mr X’s concerns.
20. The NPPF makes it clear that the Council is not obliged to take formal enforcement action. Rather, it must consider if there is a breach of planning control and, if so, whether any harm caused is significant enough to warrant enforcement action. The NPPF endorses taking action when it is proportionate to do so. So, in principle, the decision not to take action is one a council can make when dealing with an enforcement report.
21. However, if a council decides not to take any action, we would expect it’s response to explain the reasons for this. The Council’s response to Mr X’s report was poor on what is a relatively simple planning matter. In 2018 the Council stated only that it could not help and this was a legal issue. The Council does not appear to have determined whether this was actually a breach of planning control and it provided no explanation to Mr X about why it did not consider it should take action.
22. In 2020 highways officers told Mr X that the height of fencing adjacent to a highway was limited by permitted development rules. The planning enforcement team had an opportunity to look at the matter again and clarify its position. It did not do this. Despite highways officer’s comments and photographs from Mr X, the planning department stated only that 2m fencing was permitted. It did not address the fact that some of the new fencing was adjacent to the highway and it did not comment on Mr X’s concerns about the lack of visibility that resulted from it.
23. In addition, the Council’s complaint responses were poor. When Mr X complained, the Council initially did not explain its view, stating only that it would not reconsider its position. At Stage Two of the complaints process, the Council explained the planning departments view on a completely different matter Mr X had raised on a previous occasion. This was about a boundary wall. It is difficult to see how the Council satisfied itself that the planning team had acted appropriately given the findings of the complaint were about a different matter. When we asked the Council about the apparent confusion, it stated this was a typographical error. This was clearly not just a typographical error replacing “fence” for “wall” as the Stage Two complaint response goes on to discuss guttering which was a feature of Mr X’s separate wall complaint, not the issue with the fence that he was complaining about.
24. Overall, I found there was a failure to properly address Mr X’s report. It is not clear whether the planning enforcement team properly considered if there had been a breach of planning control. There was also a failure to explain the Council’s position on the report properly. Mr X gave the planning enforcement team numerous opportunities to better explain its position. The way the Council handled Mr X’s report put him to the time and trouble of pursuing a complaint and this was avoidable. The complaint response was also inadequate.

Agreed action

25. Within four weeks of my final decision the Council should take the following action:
26. The Council should write to Mr X to properly explain its view on his planning enforcement report regarding his neighbour’s fence. It should take account of the visibility and access issues he raised. It should confirm if it considers permitted development rules apply and whether there is a breach of planning control. If there is a breach, and the Council considers it should not take action, it should explain why.
27. The Council should pay Mr X £100 to reflect the avoidable time and trouble he was put to raising his complaint.

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Final decision

28. There was fault by the Council.

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Investigator's decision on behalf of the Ombudsman